42 Journal of Regulatory Compliance Issue II
determination is part of the record that the agency must consider during its
reevaluation of the case.161 The initial decision also is part of the record for
purposes of potential eventual judicial review.162
As administrative law expert Professor Michael Asimow has observed, the
United States’ administrative adjudicative system relies most heavily on the
individual adjudicator’s initial decision.163 Comparatively “[f]ew resources
are invested in reconsideration or judicial review” because “it is improbable
that the decision will be overturned on the basis of a factual or discretionary
Moreover, simply during an ALJ’s initial consideration of a case, she
exercises substantial governmental power over the regulated party. For
example, an ALJ has the power to issue subpoenas, take depositions, and
require parties or their representatives to attend conferences.165
It is important for the democratic accountability and transparency of
Article II procedures to apply to these exercises of governmental power.166
The stakes are high. In the D.C. Circuit’s Lucia case, for example, agency
adjudication resulted in Mr. Lucia’s lifetime bar from his profession.167
II. PROPER LIMITS ON MATTERS SUBJECT TO AGENCY
As legal scholarship about agency adjudication lays bare, the preservation
of true impartiality of the kind we expect in judicial determinations directly
conflicts with the value of maintaining presidential supervision over
executive action.168 Giving the Chief Executive or a department head any
role in appointing, or removing, or even directing the general policies of
agency officials involved in judicial resolution of contested issues opens up
161. See 5 U.S.C. § 557(c); see also Bandimere, 844 F.3d at 1179–80 (describing
numerous ways in which initial consideration by SEC ALJs shapes the outcome of a case even
when it is reviewed by the commission on appeal).
162. Compare 5 U.S.C. § 706 (providing for judicial review of the records from agency
action), with 5 U.S.C. § 557(c) (“All decisions, including initial, recommended, and tentative
decisions, are a part of the record . . . .”).
163. Michael Asimow, Five Models of Administrative Adjudication, 63 AM. J. COMP. L.
3, 13 (2015).
164. Id. at 13–14.
165. 5 U.S.C. § 556(c)( 2), ( 4), ( 8); see also Bandimere, 844 F.3d at 1178–81 (describing
the numerous duties and substantial influence of the SEC’s ALJs).
166. See supra notes 105–109 and accompanying text (discussing the democratic
accountability and transparency of Article II procedures).
167. Raymond J. Lucia Cos., 832 F.3d at 283.
168. See, e.g., Barnett, supra note 9, at 825 (arguing that the elimination of tenure
protections for purposes of improving presidential supervision would increase the potential
for bias); id. at 826 (describing independence as the “flipside” to supervision and contending
that increasing removal power will have an “inverse impact on independence and